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The Lowell Mountain wind towers as seen from Irish Hill. Photo by Bethany M. Dunbar

by Paul Lefebvre

copyright the Chronicle 12-12-2012

NEWPORT — A utility wind developer company that tried to do the right thing by the press appears to have shot itself in the foot when it allowed the arrest of a reporter and then failed to step forward and rectify an action contrary to company policy.

The Orleans County state’s attorney’s office last week dismissed a criminal charge of unlawful trespass brought against Chris Braithwaite, a reporter for and publisher of the Chronicle in Barton.

Mr. Braithwaite, who had been spearheading his paper’s coverage of the wind project on Lowell Mountain and the controversy it triggered, went to the site on December 5, 2011, to cover a demonstration that protesters had scheduled for the morning.

Police intervened and arrested six protesters, who became known as the Lowell Six. A jury found each of them guilty of unlawful trespass this summer. Mr. Braithwaite also was arrested despite his claims he only had gone to the site to cover the demonstration as a reporter.

When news of his case’s dismissal was announced last week, Mr. Braithwaite, 68, of West Glover, released the following statement:

“On the day after my arraignment on a charge of unlawful trespass, I wrote that I believed my conduct on Lowell Mountain on December 5, 2011, satisfied the dictates of common sense and the ethics of journalism. What remained was the daunting task of demonstrating that it was also within the law. That task came to a successful conclusion today.”

Dismissal came as the case was preparing to go to trial and after defense attorney Phil White subpoenaed internal e-mails that passed back and forth among officials of Green Mountain Power Company (GMP.)

The documents show that GMP intended to give Mr. Braithwaite and other reporters access to its Lowell Mountain site, where protesters were demonstrating against the construction of a 21-turbine wind project.

“Does anyone know what happened,” asked Robert Dostis, a GMP official who works with communities and who was responding to colleagues about an editorial against the arrest.

To GMP’s site manager at Lowell Mountain, he went on express surprise that an arrest had occurred.

“Frankly, I don’t understand why Chris was arrested since you gave exact instructions that he not be,” he wrote in an e-mail dated December 10.

A day later, a second official struck a similar note.

“I think now we have to put an end to the notion we tried to stop the media, when we simply did not,” wrote a GMP consultant Stephen Terry in an internal e-mail sent six days after the arrest.

He then repeated a question asked earlier by the company’s public relations officer: “Did the leadership instruction not to arrest CB just not get relayed fast enough Monday morning?”

While release of the e-mails helped to end the criminal charge, they may have opened a new chapter in the case.

Attorney White said Monday he had asked for an apology from GMP as well as compensation for expenses and legal fees that came to $22,330.

“Had Green Mountain Power disclosed this information to the State Attorney’s Office promptly, Chris never would have had to undergo a year facing criminal charges,” wrote Mr. White in an e-mail.

“Instead, GMP sat on its hands and did nothing, absolutely nothing.”

Mr. White said he hoped that GMP would “do the right thing” by apologizing and paying Mr. Braithwaite.

But that appeared unlikely Tuesday.

GMP Public Relations Officer Dorothy Schnure said that it was Mr. Braithwaite’s refusal to leave the site that caused him to be arrested. And once an arrest occurred, it was out of GMP’s hands.

“It’s not our case, it’s the state’s,” she said, adding later: “While we had hoped he wouldn’t be arrested, that’s what played out.”

She declined to comment Tuesday if the company had received Mr. White’s request of GMP to pay for his client’s legal fees and expenses.

In an e-mail later in the day Ms. Schnure stated:

“Frankly, the proposition that David Coriell acted inappropriately and that it gives grounds for a legal claim by Chris Braithwaite is frankly frivolous.”

On Monday Judge Howard VanBenthuysen, who presided over the case, released some of the documents, which had been sealed under an agreement between the defense and prosecution.

The judge noted they had been submitted in support of the defense motion to dismiss with prejudice and were now part of the public record.

He also said he would not rule on the motion to dismiss the case with prejudice until the state had a chance to respond. If a case is dismissed without prejudice, the state can bring it again. He set a deadline of December 26 for the prosecution to respond.

Deputy State’s Attorney Sarah Baker said in an interview Tuesday she would file a response opposing the motion because there is still evidence available that would enable the state to win the case.

She said her motion would also explain why the state dismissed the charge, adding that her office did not want to inconvenience a witness and former employee of GMP who has since moved from Vermont. Ms. Baker also said there were documents in the file that had not been unsealed and that would help the state prove its case, in the event it was brought back.

The documents that came to light this week indicated that the state’s dismissal may have hinged on the failure of a GMP employee at the scene on the day of the arrest to correctly inform police officers of the company’s policy toward arresting Mr. Braithwaite and any other journalists covering the protest.

As GMP officials scrambled to learn what had happened, David Coriell, its representative at the site during the protest, tried to explain to his bosses in two e-mails why the arrest had occurred.

The first e-mail sent on the day of the arrest stated: “Braithwaite and another woman stopped at the edge of the construction site and started taking pictures. Phil Brooks, the Orleans Co. Chief Deputy, asked Braithwaite and the woman to get back another 50 feet to the Nelson property. The woman complied. Braithwaite chose to stay. Brooks approached Braithwaite and after a short conversation he asked him to leave or come back and stand with those willing to be arrested. Braithwaite walked back and stood with those being arrested.”

In the second e-mail, dated December 11, Mr. Coriell told his bosses that the no-arrest instructions “didn’t get relayed to all the officers involved.

“That said, I know the Sheriff had no intention of arresting Chris. Chris actually arrested himself by physically walking back to the middle of the crane path.”

He went on to say that Mr. Braithwaite called the officer an expletive. The officer charged that the reporter had stepped “over a professional line.”

Ms. Schnure said Tuesday the scene that day at the site was confusing, with cell phones losing signal and people milling around. She called the arrest Tuesday “a breakdown in communications.”

Concerned that another protest at the mountain was coming, GMP officials huddled and considered what they should do about access and the press, and what instructions to give the police. An e-mail from Ms. Schnure to GMP managers on December 11 laid out a possible course of action.

“Dave confirm that sheriff will be there early if at all possible. Ensure sheriff knows media has permission to be there. Tell Sheriff we really don’t want any reporters arrested.”

Mr. Terry, the consultant, agreed, calling the proposed instructions “a good way to pre-empt another journalism arrest which was never our intent or purpose here.”

While it is still unclear how far the documents went in convincing the state to dismiss the charge, they did provide a picture of GMP managers working to ensure similar arrests of reporters would not occur at future demonstrations.

“We have to minimize the public and political fallout of decisions made on the mountain,” wrote Mr. Dostis in a December 10 e-mail.

“Arresting reporters will do more harm than good.”

Ms. Schnure said repeatedly Tuesday that it was Mr. Braithwaite’s actions that caused his arrest. And that he was not owed an apology by GMP.

Eric Gillard, the brother of one of the Lowell Six, holds a sign in front of the courthouse. Photo by Paul Lefebvre

by Paul Lefebvre

copyright the Chronicle 8-22-2012

NEWPORT — It took a jury of nine women and three men four hours to find wind opponents known as the Lowell Six guilty of unlawful trespass, following a one-day trial here in Superior Court.

The verdict appeared to reflect a trial in which a straight law and order issue trumped a disputed property boundary.

Conflicting testimony over the dispute may have confused the jurors as about an hour or so into their deliberation, they sent a note to the judge.

They wanted to know if there could be a legal owner when a property is in dispute. And if the dispute was still current.

Trial Judge Martin Maley complimented the quality of the questions, but ruled each irrelevant.

“Do the best you can based on the evidence you heard,” he instructed them.

Disputed property boundaries were the key to the defense case: If the state could not prove that the protesters were standing on property that was in the lawful possession of Green Mountain Power (GMP), then the defendants could not be convicted of unlawful trespass.

The prosecution argued that GMP was in lawful possession of the property, and that the protesters had broken the law when they refused to leave the land that had been posted by the company.

The trial was the first to be held involving protesters against the Lowell wind project that is being constructed by GMP.

Each of the six were arrested on December 5, 2011, when they refused police orders to leave posted property on Lowell Mountain while blocking the path of heavy construction vehicles.

Although the six presented their case as a group, the jury found each guilty as individuals.

Six more protesters are scheduled to be arraigned next month for a similar confrontation on the same mountain earlier this month.

Held Wednesday of last week, August 15, the trial was surprisingly silent on the underlying and highly charged issue that caused the defendants to break the law. Before the jury entered the courtroom, Judge Maley warned he would only allow limited testimony on why the defendants were on the land. And nothing, per se, on wind itself.

The jury, he said, knew what the case was about. “It’s not a secret to them.”

So wind remained the elephant in the room: the one everyone knew was there and agreed not to see.

Surprisingly, the only one to raise it as an issue was prosecutor Sarah Baker, when she sought to challenge the intent of the defense’s star witness, surveyor Paul Hannan of Calais, formerly of Holland and at one time a Kingdom legislator who served in the House.

Placed on the stand as an expert witness by defense attorney Kristina Michelsen, Mr. Hannan was prepared to provide the rock-bottom kind of testimony the defense needed to support its case.

Mr. Hannan testified that he had 31 years of experience as a surveyor and the credentials to qualify as an expert. The rules of evidence, however, say that either side can challenge an expert’s witness. And when her turn came, Ms. Baker proceeded vigorously.

First she asked Mr. Hannan about his association with Sterling College, and learned that during the years 1990 and 1991, he was one of the faculty members who accompanied students on three-to-four-day expeditions on Lowell Mountain.

The prosecutor pressed on. Did he have any prior knowledge of Don Nelson — who allowed the students to use his property and who also is in a property dispute with GMP concerning the boundary line between his land on the mountain and the adjourning site where the utility is constructing its wind project.

No, said Mr. Hannan.

Ms. Baker may have thought she had found a chink in the defense’s armor when she abruptly asked the witness if he had any association with any anti-wind group.

Instead, the question brought a prompt objection from attorney Michelsen, along with a few hisses and murmurs from the 35 or so spectators in the gallery, a largely anti-wind crowd.

Judge Maley sustained the objection and Ms. Baker sat down, taking with her any references that the industrial wind project on Lowell Mountain had anything to do with the case.

There was a stirring in the closing moments of the trial when one of the defendants, Dr. Ronald Holland, took the stand. The doctor’s name had surfaced earlier in the trial when Deputy Sheriff Phil Brooks testified for the state.

Of the ten protesters on the mountain that day, the deputy said he only knew Dr. Holland from previous personal and professional encounters. He went on to testify that about two weeks prior to the December 5 confrontation, he received a call at home from Dr. Holland. The doctor, according to the testimony, told the deputy he was going to the mountain that day to protest and wanted the deputy to arrest him.

“I informed him I was off duty and it wasn’t going to be me,” Deputy Brooks testified, adding that he passed what he characterized an “odd request” on to the State Police, who didn’t do anything either.

That testimony was before the jury when Dr. Holland took the stand late in the day. The 67-year-old resident of Irasburg told jurors that days prior to the confrontation with police, he had gone onto the site and measured with twine the distance where he believed Mr. Nelson’s property ended.

And on the day of the confrontation, he testified he went to the limit of that measured distance.

But in a question that had nearly everyone in the courtroom leaning forward on the edge of their seats, Ms. Michelsen asked the emergency room doctor why he had climbed to the top of Lowell Mountain on December 5, 2011.

He paused and bowed his head a moment before answering that he had gone there to “protest the taking of Don Nelson’s property.”

Defendant David Rodgers, 69, of Craftsbury followed Dr. Holland to the stand and testified that he too believed he was on the Nelson property when police moved in to arrest him.

He testified that Dr. Holland had tied a block of wood to the end of a string as a means of measuring the property’s boundary. And that he was “very careful not to” trespass on the land GMP is leasing to erect its 21-turbine wind plant.

The procession to the stand might have continued had not the prosecution agreed to stipulate that the remaining four defendants had followed the doctor’s lead.

But if the defense thought a protest over property rights could overturn the confrontation that followed, the jury saw it differently. Nor did any witness refute or challenge the deputy’s testimony over what happened that day.

Deputy Brooks testified he received a call around nine that morning from GMP, informing him that protesters were on the mountain blocking heavy equipment from working on the wind project. Police arrived roughly two hours later, and observed that the group was blocking cranes and big trucks.

“They were stopped on either side of where the defendants were,” he testified.

Deputy Brooks testified that prior to December 5, GMP had shown him a map of the project and its property boundaries. And when confronting the protesters, he said he gave everyone the opportunity to step back behind the property line between GMP and the Nelson farm.

Of the ten protesters, three complied with a police order to step aside. Six refused and were placed under what sounded like a gentleman’s arrest. The deputy said he chatted cordially with the defendants and discussed everything but the project going on around them.

“I limited myself to that,” said Deputy Brooks.

The biggest problem police encountered that day, the deputy added, was finding a way to transport their prisoners off the mountain.

Police also arrested a seventh individual, Chronicle publisher Chris Braithwaite, who is challenging his arrest on grounds he was there doing his job as a reporter.

GMP’s intent to keep people off the site and the property it has under lease was deliberate and thorough, according to its project manager Charles Pughe, who also oversaw the posting.

“We cleaned out several stores,” he said, speaking of the no trespassing signs the company purchased. “We had to have so many of them.”

Mr. Pughe testified that the land was initially posted for safety and to keep hikers out of harm’s way. But he also noted that problems with people at the site began appearing sometime in October, as campers began to gather on the neighboring Nelson land.

Terms of the lease gave GMP authority to exclude or allow access to anyone the company chose, he said.

Mr. Pughe was off site the day the protesters were arrested. But under cross-examination by Ms. Michelsen, he said, he could tell from photographic evidence — including photographs taken by the arrested journalist — that the protesters were on GMP’s leased property at the time of their arrest.

He estimated the face of the turbine would be about 200 feet away from the Nelson boundary line.

From the moment he took the stand it was evident that Don Nelson was not going to be a friendly witness.

He gave mostly monosyllabic responses to the prosecutor’s questions, and when asked to read a document, he shrugged and said he didn’t have his glasses. That brought a query from the bench

“Need your glasses, Mr. Nelson?” asked Judge Maley.

“Don’t have them with me,” replied Mr. Nelson.

The prosecutor decided to try a different tack by asking the witness if he had given Dr. Holland permission to go on his property.

“My land is open. People come and go,” he replied. “I don’t invite or not invite. We don’t post it.”

When Ms. Michelsen’s turn came to ask the questions, Mr. Nelson said that Dr. Holland had come to see him about the boundary dispute, and that he had provided him with the coordinates that were in disagreement. According to his testimony, the dispute began years ago with the landowner who leased the land to GMP. At the time, the witness testified, there was a difference of roughly 420 feet.

For its final witness, the state put on the surveyor who recently bought out a surveying business in Derby Line that surveyed the Nelson property several years ago in hopes of resolving the boundary dispute.

Andrew Nadeau testified that the previous owner had surveyed the property in dispute in 2007, and that he had spent in excess of two weeks surveying it as well. But the surveyor who spent the longest time on the stand turned out to be the expert for the defense, Mr. Hannan.

Throughout his testimony, Mr. Hannan repeatedly testified there were fundamental mistakes in the 2007 survey — that affected the boundaries of lots leased by GMP.

He told jurors that in surveying the same ground, he found that markers had been inappropriately defined. He said there must be corroborating evidence to define a marker or monument that had been used in the past when the land was first surveyed. And such markers, he added, could be used to determine boundaries.

“When is a stone pile a stone pile or a monument?” he asked at one point.

Jurors already had heard from Mr. Nelson that surveying is not an exact science, and depends in part on the quality of surveys done in the past. Mr. Nelson noted that he and his neighbor had tried to settle survey discrepancies on their abutting lands through an agreement. Their boundary dispute was rekindled, however, when the agreement came unraveled.

Mr. Hannan testified that in surveying the land for the Nelsons, he found almost no markers on the ground that were left when the land was first surveyed in 1790. And he told the jurors that the monuments defined by the 2007 survey were inaccurate.

Closing arguments were short, lasting about five minutes apiece. Each attorney offered similar arguments to those they had made in their opening statements.

The verdict clearly took the defense and its supporters by surprise. After asking the judge to poll each juror for a verdict, Ms. Michelsen said she would be filing post trial motions. The court gave her ten days to submit them.

Prosecutor Baker said she would be requesting a restitution hearing, which means the state will try to convince the court to order the defendants to pay compensation to GMP.

The late hour verdict led the defendants to call off a press conference they had planned to hold at the conclusion of the trial.

In a press release Monday, Dr. Holland was quoted as saying:

“We are obviously disappointed with the verdict but respect the jury’s efforts. This is, and will continue to be, a complex case that rejects the simple and disingenuous offerings of Green Mountain Power. We will continue to educate Vermonters on the science and math of ridgeline wind-generated electricity.”

As Mr. Pughe was walking away from the courthouse, he said he hoped the verdict would make his job easier.

The remaining four defendants of the Lowell Six are: Ryan Gillard, 23, of Plainfield; Suzanna Jones, 50, of East Hardwick; Ann Morse, 48, of Craftsbury; and Eric Wallace-Senft, 46, of West Woodbury.